TB Suspension: Cheater free to play again

[BaseballJones]

Mark Daniels ‏@MarkDanielsPJ 19m19 minutes ago
Goodell: It was an independent investigation... I’m not sure how much more independent you can get.

FULL comments can be found here

So early on he claimed it was independent. Then when it became known that Pash was actually involved in it they dropped all pretenses that it was independent. Now that it's over (I guess), he goes back to claiming that it was independent.

 

[HowBoutDemSox]

Playing off some of the thoughts here a bit, and again maybe there is a distinction between the FAA and the NLRA with respect to how this would work, but could companies start drafting their standard form contracts with an arbitration provision that gives them the power to name their own employee as arbiter, rather than some (purportedly) neutral third party arbitrator or arbitration firm? You sign up for a cell phone plan or a credit card, and Verizon or American Express can have their customer services officer just sit as an arbitrator and shoot down all your arguments about how they're screwing you; would that be entitled to deference under the FAA?

 

[Koufax]

Bear in mind that the NFL players have a union. So your suggestion might work if it were negotiated with a union, but otherwise, I really don't think it would hold up.

 

[awallstein]

The FAA provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving com- merce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2.

Even though the Supreme Court has limited the so called savings clause ("save upon such...") not to allow the common-law unconscionability doctrine to nullify class-arbitration waivers, that doctrine would have to invalidate a total clown-show of arbitration in the commercial context. I would think anyway.

 

[Otis Foster]

First, I know the horse is dead (figuratively), but we are left with a vexing question: does every dispute-resolution device get arbitral deference, whatever it's called, as WBV proposes, or are there some processes that are so unusual - either in design or in practice - that they fall outside the zone of limited review, as awallenstein suggests?

This is total guess work as I don't have the time or really the chops for in depth review, but for awallenstein's reading to prevail, it has to reflect an explicit underlying distinction between routine CBA cases and those that aren't a distinction that will not result in swamping the circuits with plain vanilla appeals. So, the question is whether this case lends itself to that.

One easy distinction is that this is a rare case where one of the parties to the dispute reserves the right to act as sole finder of fact and disciplinarian. We've been struggling to find other cases that are on point. Maybe this reflects the fact that this is an unusual practice.

We're also struggling with this question: Does the fact that the dispute arises under a CBA, and not a routine commercial or employment contract, make it different for some reason?

I can't answer the last question, but do suggest that every dispute resolution mechanism (to adopt WBV's reference) must procedurally meet minimum standards of fairness. I do not suggest that the outcome should be subject to judicial review, absent strong evidence of misconduct. I do suggest, however, that a court must always be free to determine if the process for addressing disputes within a CBA lends itself to an impartial resolution of the dispute. Most CBAs apparently concede that point by allowing for mixed or extrinsic arbitrators. This one doesn't, so the court could have disallowed this unusual if not unique process without opening the door to a gazillion others..

Fire away, folks - I happily concede I'm on unfamiliar ground.

 

[jsinger121]

Jim Harrington ‏@jejharrington 24m24 minutes ago
BREAKING: NFLPA adds another lawyer to Tom Brady legal team: attorney who successfully argued Bush v. Gore before US Supreme Court

 

[jsinger121]

Jim Harrington ‏@jejharrington 23m23 minutes ago
MORE: Theodore Olson's resume includes 62 appearances before the Supreme Court http://www.gibsondunn.com/lawyers/tolson #deflategate

 

[bsj]

Dan Werly ‏@WerlySportsLaw 2m
News: Brady/NFLPA files for 14 day extension to seek en banc review. Says case impacts every player in NFL.

 

[pedro1918]

Game on!

 

[bsj]

http://thewhitebronco.com/nflpa-letter-in-peterson/

 

[ifmanis5]

 

[Marciano490]

That's good. Ted Olson might be the best appellate lawyer in the country.

 

[Salem's Lot]

That's good. Ted Olson might be the best appellate lawyer in the country.

I wish they would've hired him for the initial appeal.

 

[RedOctober3829]

Matt Chatham ‏@chatham58 3m3 minutes ago
To repeat, CA2's decision is RIPE for review, dismissive in areas where there's contradictory precedent. Big-pic attorneys would LOVE a bite

 

[RedOctober3829]

Short bio of Ted Olson.

Selected by Time magazine in 2010 as one of the 100 most influential people in the world, Mr. Olson is one of the nation's premier appellate and United States Supreme Court advocates. He has argued 62 cases in the Supreme Court, including the two Bush v. Gore cases arising out of the 2000 presidential election, Citizens United v. Federal Election Commission, and Hollingsworth v. Perry, the case upholding the overturning of California’s Proposition 8, banning same-sex marriages. He has prevailed in over 75% of those arguments. Mr. Olson's practice is concentrated on appellate and constitutional law, federal legislation, media and commercial disputes, and assisting clients with strategies for the containment, management and resolution of major legal crises occurring at the federal/state, criminal/civil and domestic/international levels. He has handled cases at all levels of state and federal court systems throughout the United States.

http://www.gibsondunn.com/lawyers/tolson

 

[fiskful of dollars]

The way this thing is going Brady will win en banc review. Then the universe will end just as the celebration begins.

 

[drbretto]

"Give up. Accept it and move on. There's nothing they can do from here. Just bend over and take it"
-half of SoSH every other month.

 

[pedro1918]

The way this thing is going Brady will win en banc review. Then the universe will end just as the celebration begins.

I'm good with that.

 

[bsj]

http://thewhitebronco.com/brady-en-banc-extension-request/

 

[Marciano490]

Matt Chatham ‏@chatham58 3m3 minutes ago
To repeat, CA2's decision is RIPE for review, dismissive in areas where there's contradictory precedent. Big-pic attorneys would LOVE a bite

Maybe so. Remember, a lot of this is personal politics for the judges. They've all served together for years. They're all stuffed into chambers in a couple hallways together, eat at the cafeteria, etc. Voting for an en banc review is telling a co-equal judge you think he screwed up pretty big.

So, party of it will be how beloved and respected each judge is amongst his peers. Everyone reveres and looks up to Katzmann, so that's good for us. I remember Parker having a reputation for being a bit diffident. He wasn't considered one of the stars of the bench at the time, but was well-liked enough. Chin was still a district court judge when I was putzing around there. He had a reputation for being serious and intellectual and hard working. He's been on the circuit for 6 years now I think, so he's not the new guy, but he's definitely one of the newer folks and he seems to have staked out a surprisingly aggressive approach here. Frankly, of the 3 judges, based on reputation, he was the one I would've thought would have most closely read the papers and science and who's vote I would've most firmly counted on in Brady's favor.

 

[edmunddantes]

Also, NFL and NFLPA have dueling letters over in the 8th circuit explaining why Brady reversal does/doesn't apply in that case. So we've still got that going too.

 

[RedOctober3829]

Maybe so. Remember, a lot of this is personal politics for the judges. They've all served together for years. They're all stuffed into chambers in a couple hallways together, eat at the cafeteria, etc. Voting for an en banc review is telling a co-equal judge you think he screwed up pretty big.

So, party of it will be how beloved and respected each judge is amongst his peers. Everyone reveres and looks up to Katzmann, so that's good for us. I remember Parker having a reputation for being a bit diffident. He wasn't considered one of the stars of the bench at the time, but was well-liked enough. Chin was still a district court judge when I was putzing around there. He had a reputation for being serious and intellectual and hard working. He's been on the circuit for 6 years now I think, so he's not the new guy, but he's definitely one of the newer folks and he seems to have staked out a surprisingly aggressive approach here. Frankly, of the 3 judges, based on reputation, he was the one I would've thought would have most closely read the papers and science and who's vote I would've most firmly counted on in Brady's favor.

You mention Katzmann. If it went to the en banc hearing, how much does it really help that the chief justice had the dissenting opinion?

 

[Shelterdog]

You mention Katzmann. If it went to the en banc hearing, how much does it really help that the chief justice had the dissenting opinion?

The folks in my office (including a number of recent second circut clerks) thinks it actually hurts. Essentially it seems like pulling rank if the chief judge is pushing for en banc when s/he loses.

 

[djbayko]

Question for lawyers:

Is it possible that this en banc extension request and today's filing with Peterson is designed to give them more time to see exactly what happens with Peterson before deciding next steps? Perhaps they think that the 8th Circuit is close to publishing a decision, or at least close enough that they might expedite it knowing there are dependencies?

Also, can anyone explain what exactly is being argued today in the 8th? It seems strange to me as a layman that the NFLPA would be referencing a decision in the 2nd...that they lost.

 

[nighthob]

The way this thing is going Brady will win en banc review. Then the universe will end just as the celebration begins.

Does Roger end up in the line with the goats? Because hearing his screams as he's cast into the lake of fire would be totally worth it.

 

[dcmissle]

The folks in my office (including a number of recent second circut clerks) thinks it actually hurts. Essentially it seems like pulling rank if the chief judge is pushing for en banc when s/he loses.

Right. Particularly when Katzmann in the past has been a champion of panel deference. I would not be surprised if he voted against en banc review. I doubt he is losing any sleep over this particular disposition, and preserving his role as Chief Judge is important.

Hiring Olson is essential but likely insufficient. Hopefully not, but I fear the airliner hatch has been sealed, and it is not coming back to the gate.

What kills me -- the nagging thought that one of the two others could have been flipped if Olson had handled the appeal. Never to be proved one way or another.

 

[BigSoxFan]

Why would the NFLPA not hire this guy for the original appeal? Sounds like from the legal posters here that Kessler was in over his head on this much like Yee was in over his head at the beginning.

Ego of Kessler? Complacency because Kessler won Round 1?

 

[dcmissle]

Why would the NFLPA not hire this guy for the original appeal? Sounds like from the legal posters here that Kessler was in over his head on this much like Yee was in over his head at the beginning.

Ego of Kessler? Complacency because Kessler won Round 1?

Hopefully, we'll find out some day. My guess -- internal union crap. Recall that some union guys were not on board with helping Brady to begin with. So it might have been, no we're not paying extra for this guy.

I hate to second guess lawyering decisions (for obvious reasons). But in my case, I was first guessing. The argument that Kessler was the obvious choice because of his knowledge of the record was always specious. Lawyers at Olson's level could have mastered the factual record in this case over a weekend, and Olson undoubtedly has done so on short notice many times.

 

[Shelterdog]

Hopefully, we'll find out some day. My guess -- internal union crap. Recall that some union guys were not on board with helping Brady to begin with. So it might have been, no we're not paying extra for this guy.

I think it's as simple as Kessler really, really wanted to do the argument, thought he would do a great, job, (and he's a reasonable choice--he's not in over his head like Yee, he's perfectly competent, particularly in this sphere--he's just clearly no Paul Clement), and he has enough sway with the decisionmakers at the union that he got to do it. He has been rather succesfully guiding the NFLPA's strategy for years so he's built up a ton of credibility.

It's really tough for some (most?) lawyers to take a step back, be critical about their own ability, and recommend their client pay somebody else to do something you could do yourself.

 

[Marciano490]

Hopefully, we'll find out some day. My guess -- internal union crap. Recall that some union guys were not on board with helping Brady to begin with. So it might have been, no we're not paying extra for this guy.

I hate to second guess lawyering decisions (for obvious reasons). But in my case, I was first guessing. The argument that Kessler was the obvious choice because of his knowledge of the record was always specious. Lawyers at Olson's level could have mastered the factual record in this case over a weekend, and Olson undoubtedly has done so on short notice many times.

Cost? What's the difference you figure? Kessler's gotta be $1,200 and Olson $1,500 an hour? Can't imagine the money would've made too much of a difference. I'm more surprised Gibson Dunn wanted this or wasn't conflicted. I thought they had a decent sports practice. Doesn't seem worth pissing off the NFL to take on a case that may be stillborn.

 

[Shelterdog]

Cost? What's the difference you figure? Kessler's gotta be $1,200 and Olson $1,500 an hour? Can't imagine the money would've made too much of a difference. I'm more surprised Gibson Dunn wanted this or wasn't conflicted. I thought they had a decent sports practice. Doesn't seem worth pissing off the NFL to take on a case that may be stillborn.

I'd be shocked if the Olson-Kessler cost difference had anything to do with it.

Tulumello from Gibson represented Brady throughout the case.

 

[HowBoutDemSox]

Cost? What's the difference you figure? Kessler's gotta be $1,200 and Olson $1,500 an hour? Can't imagine the money would've made too much of a difference. I'm more surprised Gibson Dunn wanted this or wasn't conflicted. I thought they had a decent sports practice. Doesn't seem worth pissing off the NFL to take on a case that may be stillborn.

I thought Brady had hired Gibson Dunn already to represent his interests?

 

[dcmissle]

Cost? What's the difference you figure? Kessler's gotta be $1,200 and Olson $1,500 an hour? Can't imagine the money would've made too much of a difference. I'm more surprised Gibson Dunn wanted this or wasn't conflicted. I thought they had a decent sports practice. Doesn't seem worth pissing off the NFL to take on a case that may be stillborn.

Gibson Dunn has been representing Brady in this case, even before the filing of the district court cases. I would not be surprised if Kessler insisted on keeping this on appeal (ego), and the union told Tom, we're riding this horse, Gibson Dunn can continue to review the briefs. We're not paying more to get this new advocate up to speed.

As indicated at the time, I personally know and have worked with three or four GB lawyers, in addition to TO, who would have been superior advocates at the Second Circuit level. Now they have to bring in the 8000 pound gorilla because this matter now is the longest of long shots.

 

[PedroKsBambino]

Hopefully, we'll find out some day. My guess -- internal union crap. Recall that some union guys were not on board with helping Brady to begin with. So it might have been, no we're not paying extra for this guy.

I hate to second guess lawyering decisions (for obvious reasons). But in my case, I was first guessing. The argument that Kessler was the obvious choice because of his knowledge of the record was always specious. Lawyers at Olson's level could have mastered the factual record in this case over a weekend, and Olson undoubtedly has done so on short notice many times.

I hear you on Olson perhaps being a better choice. That said, Clement failed to master the factual record, for example, and he's clearly at Olson's level. Appellate specialists I know always think they can master the record, and trial lawyers often can point out ways that the appellate specialist failed to do so. I think the real question is whether the incrementally better skill at making appellate arguments outweighs deep factual knowledge. You predicted here it would, and I think that view held up pretty well unfortunately.

 

[wade boggs chicken dinner]

Playing off some of the thoughts here a bit, and again maybe there is a distinction between the FAA and the NLRA with respect to how this would work, but could companies start drafting their standard form contracts with an arbitration provision that gives them the power to name their own employee as arbiter, rather than some (purportedly) neutral third party arbitrator or arbitration firm? You sign up for a cell phone plan or a credit card, and Verizon or American Express can have their customer services officer just sit as an arbitrator and shoot down all your arguments about how they're screwing you; would that be entitled to deference under the FAA?

with respect to a cell phone plan, there's a legal difference between contracts involving a business and a consumer, and contracts involving two business entities. There's also a difference between contracts involving employers and unions.

But the short practical answer to your question is - if memory serves - where mandatory arbitration clauses are allowed, the vast majority of cases that go to arbitration are decided against the consumer and in favor of the business.

 

[bankshot1]

IANAL,

Given that Katzmann saw this case in an entirely different light than Parker and Chin, its entirely possible the case was lost in the panel selection, and not lawyer selection, and that with the luck of the draw someone more probing of the "facts" than Chin would have led to a more satisfactory and different outcome .

 

[dcmissle]

I hear you on Olson perhaps being a better choice. That said, Clement failed to master the factual record, for example, and he's clearly at Olson's level. Appellate specialists I know always think they can master the record, and trial lawyers often can point out ways that the appellate specialist failed to do so. I think the real question is whether the incrementally better skill at making appellate arguments outweighs deep factual knowledge. You predicted here it would, and I think that view held up pretty well unfortunately.

Clement mastered the record to the extent that he knew just how far to push things, given his rep, without getting into serious trouble. I've had the privilege of working with the guy on several matters. He does not walk into court without mastering every goddamn thing. It's a point of pride.

Some day, probably a good while from now, I'll talk with him about this case.

 

[dcmissle]

IANAL,

Given that Katzmann saw this case in an entirely different light than Parker and Chin, its entirely possible the case was lost in the panel selection, and not lawyer selection, and that with the luck of the draw someone more probing of the "facts" than Chin would have led to a more satisfactory and different outcome .

Quite possible. We'll never know, but it's a substantial possibility. Some of us mentioned it from time to time trying to kill the "slam dunk" nonsense. This was always a close case as appellate cases go, with a wide variability in outcomes.

 

[dcmissle]

dup

 

[jacklamabe65]

I am shocked by how many of you want to give into Goodell and let TB serve out the sentence. I want a fucking horse's head in Goodell's bed, and some of you want to play footsie with him. This is fucking war.

 

[DeJesus Built My Hotrod]

I am shocked by how many of you want to give into Goodell and let TB serve out the sentence. I want a fucking horse's head in Goodell's bed, and some of you want to play footsie with him. This is fucking war.

I don't think most posters in this forum want to give in to anyone. That said, it matters not one whit what folks on this messageboard think because we don't have any impact on this case. And the "war" you speak of is actually a legal process which, if our resident attorneys are correct, isn't going to yield any sort of victory.

 

[drbretto]

I don't think most posters in this forum want to give in to anyone. That said, it matters not one whit what folks on this messageboard think because we don't have any impact on this case. And the "war" you speak of is actually a legal process which, if our resident attorneys are correct, isn't going to yield any sort of victory.

Watching sports doesn't effect the outcome, yet people still wear their lucky underwear.

 

[BigSoxFan]

I don't think most posters in this forum want to give in to anyone. That said, it matters not one whit what folks on this messageboard think because we don't have any impact on this case. And the "war" you speak of is actually a legal process which, if our resident attorneys are correct, isn't going to yield any sort of victory.

I'd argue that pushing any punishment into 2017, if possible, would be a clear victory.

 

[tims4wins]

I'd argue that pushing any punishment into 2017, if possible, would be a clear victory.

Considering the 4 game suspension could have originally been in 2015, hell yeah. 4 games discount for 2 years, what is the NPV? More like a 2-3 game suspension.

 

[Mugsy's Walk-Off Bunt]

SOSH Lawyers - Does naming a high profile guy like Olson ever have any, even tiny, effect on the likelihood (either way) of an en banc review going one way or the other? Does a name like that get their attention AT ALL or is there literally no correlation whatsoever? Obviously it would never make a big difference - the case is the thing - but any chance Olson would tip the scales?

EDIT: Hanging chad/parenthesis.

 

[bankshot1]

I'd argue that pushing any punishment into 2017, if possible, would be a clear victory.

October 2017-yes
January 2017-no

 

[Eddie Jurak]

So... Closing the stable door after the horse has bolted?

 

[BigSoxFan]

October 2017-yes
January 2017-no

I would gladly roll the dice on that risk if we could legally find a way to extended the process. But it sounds like our chances of doing so are minimal.

 

[dcmissle]

SOSH Lawyers - Does naming a high profile guy like Olson ever have any, even tiny, effect on the likelihood (either way) of an en banc review going one way or the other? Does a name like that get their attention AT ALL or is there literally no correlation whatsoever? Obviously it would never make a big difference - the case is the thing - but any chance Olson would tip the scales?

EDIT: Hanging chad/parenthesis.

Would you go back in time to see Ali-Frazier? Sure. But it's not a big nudge, and I regard the odds on this as very long.

Buying some time, setting up a petition to the Supreme Court, hoping the 8th Circuit makes that path more plausible.

 

[Average Reds]

I am utterly unqualified to judge the odds of whether there will be an en banc or SCOTUS review, but it strikes me that Ted Olson doesn't normally take a case that has no practical chance of being heard.